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TMI Blog2008 (2) TMI 976X X X X Extracts X X X X X X X X Extracts X X X X ..... One property was sold by one Krishan Kumar as his personal property to respondent Nos. 1 to 6 (in both the appeals) on 18th Dec., 1978. It appears that some of the properties were already let out to State Government and, therefore, the purchasers respondent No. 1 to 6 after purchasing the property filed the suit for eviction of their tenants respondent No. 7 to 10 (in S.B. Civil First Appeal No. 232/2005) on the ground of personal bonafide necessity etc, which is Civil Original Suit No. 29/81. The above suit was dismissed by the court of Addl. District Judge, Rajsamand vide judgment and decree dated 15th Sept., 1990. The respondent Nos. 1 to 6 aggrieved against the judgment and decree of the trial court dated 15th Sept., 1990 preferred a regular first appeal before this Court, which was registered as S.B. Civil First Appeal No. 166/1990. In the first appeal, a written compromise was submitted by both the parties in terms of the order passed by the State Government dated 27th March, 1995. In view of the compromise between the parties, the eviction decree was passed by this Court on 24th May, 1995 against the tenants-respondents and in favour of the plaintiffs-respondents No. 1 to 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for declaration that property in dispute for which sale deed was executed as back as on 18th Dec., 1978 may be declared to be ownership property of plaintiff No. 1-temple and sale deed dated 18th Dec., 1978 may be declared illegal, null and void and by sale deed dated 18th Dec., 1978 no right, title accrued in favour of respondent No. 1 to 6-defendants Nos. 1 to 6 this Court while dismissing the writ petition of Ishwar Chand Sharma (DB Civil Writ Petition No. 1323/1996) also took note of pendency of above suit while dismissing the writ petition of the petitioner Ishwar Chand Sharma. 7. In Civil Original Suit No. 46/2001, the defendants- respondents-decree holder as well as defendants No. 1 to 6 submitted application under Section 151 CPC for dismissal of the suit filed by the plaintiff with the allegation that the suit is liable to be dismissed as it amounts to abuse of process of court. The respondent Nos. 1 to 6 narrated all the facts referred above about passing of the decree in favour of respondent Nos. 1 to 6 by the High Court in regular first appeal and donating the school building by the respondent No. 1 to 6 to the State for running the school and Ishwar Chand's effo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 28th Nov., 2002 by this Court and after two years, on 11th April, 2005 appellant submitted an application under Order 41 Rule 27CPC in S.B. Civil First Appeal No. 239/2002 alleging that respondents Nos. 8 to 11 are the tenants in the property in dispute and dispute is whether the property in dispute was the personal property of respondent No. 7 Shri Krishan Kumar or it is the property of the temple Mandir Thakurji Shri Mathuradassji, Chota Bhandar, Kakroli plaintiff-appellant No. 1. According to the appellants, appellant No. 4 inquired from the office of the respondent No. 11 the District Education Officer, Primary, Rajsamand as to how and in what circumstances, the tenant attorn to respondents Nos. 1 to 6 who purchased the property from respondent No. 7 Shri Krishan Kumar. The appellant No. 4 for the first time came to know that Education Department was informed by the temple that property in dispute has been sold to 6 persons by it so the rent may be given to those purchasers and the purchasers also informed the department that they have purchased the property from Mandir Thakurji Shri Mathuradassji, Chota Bhandar, Kakroli. In view of the above it is clear that the property w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly submitted that the suit of the plaintiff could not have been dismissed under Section 151 CPC on the ground of certain observations made by this Court in public interest litigation writ petition No. 1323/1996 or because of any finding recorded in earlier round of litigation and the suit filed by the plaintiffs is a regular suit filed for declaration of title of the property and cancellation of sale deed or declaration of sale deed to be null and void. 13. The suit is based on factual aspect and without determination of facts stated by the plaintiffs, the plaintiffs' suit could not have been dismissed. It is also submitted that learned District Judge committed wrong by taking support from the observations made in the judgment of this Court passed in S.B. Civil Misc. Appeal No. 599/1997 by which the application for grant of temporary injunction was dismissed in this very suit. It is submitted that the observations made by this Court in proceedings arising out of an application for grant of temporary injunction order was not binding upon the trial court. It is also submitted that the plaint could have been rejected only under Order 7 Rule 11 CPC provided any case is made under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... party in his personal capacity as plaintiff No. 2 and three other persons have joined him in filing the suit. Same Ishwar Chand submitted public interest litigation writ petition No. 1223/1996 before this Court on 22nd April, 1996, which happened to be filed four months prior to filing of the suit in hand. In the said writ petition No. 1223/1996, it appears that said Ishwar Chand stated that he was Vice Principal of Government Secondary School, Kankroli. The said petition preferred by Shri Ishwar Chand was dismissed by this Court with clear finding that...the petition is clearly an abuse of the process of this Court and abuse of the practice of entertaining public interest litigation by this Court. The petitioner is really putting a spoke in the wheel by seeking a restraint order against the running of the school in the new premises. The intention appears to be that if the government is restrained from running the school in new premises, naturally and consequentially it cannot vacate the old premises and the real intention seems to be not to allow respondents No. 6 & 7 to eat the fruits of the litigation culminating in a compromise decree in their favour passed by this Court this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detail particulars of notices are not given but still fact is clear that the reference of notice in application under Order 21 Rule 97 CPC is of the same notice which are referred in the application under Order 41 Rule 27 CPC filed by the appellants. Further, subsequent event is that in the name of Mandir Thakurji Shri Mathuradassji, Chota Bhandar, Kakroli Shri Vinod Sanadhaya one more application has been submitted under Order 21 Rule 97 CPC on 15th May, 2005 in the executing Court. This application is through one Vinod Sanadhya. In this application also it has been alleged that the tenants have been mislead to believe that the decree holder purchased the property and on this fraudulent representation, the tenants started giving rent to the decree holders and believed the decree holders to be their landlords. In this application also there is reference of same notices given by the erstwhile owner of the property and the purchasers to the tenants. It has also been stated how Shri Krishan Kumar was owner of the property has not been mentioned in the sale deed executed in favour of decree holder and, therefore, decree cannot be executed. It appears from the facts prior to filing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of 1978 has not been challenged by either trustees or temple or its worshipers and even by the plaintiffs for such a long period of about 18 years and decree was passed by the High Court for eviction of tenants in the year 1999. It appears that one after another person declared himself to be guardian of Temple to abuse the law and process of court which is clear from the timings on which actions were taken of filing PIL, suit, other objections in execution at various times. 16. Totality of the circumstances clearly shows that the plaintiffs filed the suit for taking benefit of procedure provided by the Civil Procedure Code and, therefore, submitted that plaint of the plaintiffs could have been rejected under Order 7 Rule 11 CPC. Under Order 7 Rule 11 CPC plaint can be rejected on the grounds mentioned in the Order 7 Rule 11 CPC like the suit is barred by law or it does not disclose the cause of action or proper court fees has not been paid even after order of the court. If the suit is abuse of process of the court and cannot be dismissed under Order 7 Rule 11 CPC then the court is not helpless and can accordingly invoke the powers under Section 151 CPC and can dismiss the suit u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entertained by the executing court. Subsequently filed application under Order 21 Rule 97 CPC is in the name of the same temple. The executing court was right in holding that subsequently filed application under Order 21 Rule 97 CPC could not have been entertained in view of the earlier order dated 12th May, 2005. On merits also, I do not find any substance in the allegations levelled by the objectors under Order 21 Rule 97 CPC because of the reason that he failed to produce any material before the executing court for holding any inquiry and in a case where execution of the decree is resisted then the objector is required to place on record the sufficient material on the basis of which he can claim for entertaining his application and when application to object the execution of decree is filed. Without sufficient facts and without support of any material or proof, the executing court can be summarily dismissed the application. Therefore, I do not find any merit in the S.B. Civil First Appeal No. 232/2005 and the same is also hereby dismissed. 20. Consequently, S.B. Civil First Appeal No. 239/2002 and S.B. Civil First Appeal No. 232/2005 are dismissed with costs. 21. The keys of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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